RAKESH GUPTA vs PARSVNATH DEVELOPERS LIMITED THROUGH ITS MANAGING DIRECTOR AND OTHER DIRECTORS

HARERA ffiGURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ORDER 1.

The present complaint has been filed by the complainant/allottee under section 31 ofthe Real Estate [Regulation and Development) Act' 2016 [in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules,2017 (in short' the Rules) for violation of section 11(a)(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations' Mr.

Rakesh Gupta R/o: - 1A7, Rajdhani Enclave, Pitampura, North-West, Delhi 1100 3 4 Versus M/s Parsvnath DeveloPers Limited.

Regd.

Oflice at: - Parsvnath Tower, Near Shahdara Metro Station, Delhi - 11.0032 COMM: Shri Sanjeev Kumar Arora APPEARANCE: Shri Gaurav Rawat [Advocate) Shri Deeptanshu lain [Advocate) Complaint No.

4030 of 2023 Complaint no.

I 4030 of2023 Order reserved ont 05.O7.2O24 Order Pronounced onr 26.07.2024 Complainant Respondent Member Complainant Respondent Page 1 of 14 HARERA MGURUGRANI Complaint No.

4030 of 2023 responsibilities and functions to the allottee as per the agreement for sale executed rnter se them.

A.

Unit and proiect related details 2.

The particulars of unit details, sale consideration, the amount paid by the complainanl date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: s.N.

Particulars Details L, Name ofthe proiect Cannot be ascertained (Upcoming Future Project, Gurugram) 2.

Nature of project Group Housing Colony 3.

RERA Registered Not Registered 4.

Date of booking 0 5.09.2 004 (As stated by the complainant at page 14 of complaint l 5.

Original Allottee Bhupinder Singh 6.

1.t Subsequent allottee The original allottee endorsed the unit in the name of complaiannt on 25.05.2006 herein being the 1" subsequent allotteel (Page 18 of the complaintl 7.

Apartment no.

Cannot be ascertained/No documents placed on record 8. record 8.

Date of builder buyer agreement Cannot be ascertained/No documents placed on record L Possession clause Cannot be ascertained /No documents placed on record Page 2 of 14 ffiHARERA # arnuennvr B.

3.

Complaint No.

4030 of 2023 Facts ofthe complaint The complainant has made the following submissions: - aJ In 2004, the respondent issued an advertisement announcing future group housing proiect in Gurugram was launched by respondent, and thereby invited applications from prospective buyers for the purchase of unit in the said project.

The respondent confirmed that the projects will soon get building plan approval from the authority.

Relying on various representations and assurances given by the respondent and on 10.

Due date of possession 05.09.2007 (As per Fortune Infrastucture and Ors. vs.

Trevor D'Limo and Orc. (12.03.2018 - sc); MANU /5c /02s3 /2018 -3 years from the date of first payment by the complainant i.e., 05.09.2004) 11.

Total sale consideration Cannot be ascertained /No documents placed on record 72.

Paid up amount Rs.7,50,000/- (As stated by the complainant at page 8 of complaint and also as per receipts annexed in the compliant at page no.

19 and 20) 13.

Occupation certificate Not Obtained 14.

Offer of possession Not 0ffered Page 3 of 14 HARERA M GURUGRAI/ no.

547343 dated 05.09.2004, and Rs.

4,75,000/- vide cheque no.

291586 dated 09.02.2005 towards the booking of the said unit in the upcoming project in Gurugram and the same was acknowledged by the respondent.

As per the demands raised by the respondent, based on the payment plan, the complainant to buy the captioned unit timely paid a total sum of Rs.

7,SO,OOO/- towards the said unit.

The respondent till date failed to obtain the approvals, fail to issue allotment letter and complete the project.

Reliefsought by tlle complainant: The complainant has sought following relief(s): I. ief(s): I.

Direct the respondent to refund the entire amount to the complainant along with interest from the date of respective payments till its complete realization.

Reply by the respondent: The respondent has contested the complaint on the following grounds: - a.

That since the complainant is not covered under the definition of allottee as defined under section 2(d) of the Real Estate (Regulation and Developmenr) Act, 2016 (RERA, Act), the respondent is filing the present reply to the captioned complaint.

The complainant is not covered under the definition Complaint No.

4030 of 2023 belief of such assurances, complainant booked a unit in the future project by paying an amount of Rs.2,75,000/-vide cheque C.

4.

D.

5.

Page 4 of 14 HARERA ffiGURUGI?AI./ 6.

4030 of 2023 of allottee as defined under Section Z(dJ of the Real Estate IRegulation and Development) Act,2016 (RERA, Act]. b.

Admittedly, the complainant in the captioned complaint has only applied for allotment of a residential apartment in the proposed project of the respondent.

It is clear that no allotment had even been made to complainant.

Therefore, the complainant is not covered under the definition of allottee as defined under section 2(d) ofthe RERA Act. c.

The complainant has not placed on record to show any document evidencing that the he had approached the respondent for allotment of unit for a project being constructed in Gurugram.

The complainant had failed to place on record any document to show cause as to in which project he has applied for the allotment of unit.

In view of the same, it is submitted that this Hon'ble Authority lacks jurisdiction to entertain the captioned complaint. d.

Since the complainant is not covered under the definition of allottee as defined under section 2(d) of the RERA Act, the captioned complaint is not maintainable and is liable to be rejected on this ground alone.

Copies of all the relevant documents have been filed and placed on the record. he record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and Page 5 of 14 E.

HARERA MGUI?UGRAM 7.

8.

4030 of 2023 submission made by the parties as well as the written submission of the complainant.

Jurisdiction of the authority The respondent has raised a preliminary ob.iection regarding rejection of complaint on ground of jurisdiction stands rejected.

The authority obseryes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.I Territorialiurisdiction As per notification no.

I/92/2077-1TCp dated 14.L2.2077 issued by Town and Country planning Department, the iurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram District.

Therefore, this authority has complete territorialjurisdiction to deal with the present complaint.

E.ll Subiect matter iurisdiction Section 11(41(a) of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 1 1(4) (a) is reproduced as hereunder: Section 77..,., (4) The promoter sholl- (o) be responsible for alt obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the ollottees os per the agreement for sole, or to the qssociation of allottees, as the case may be, till the conveyqnce of oll the apartments, plots or buildings, as the case may be, to the ollottees, or the common areas to the ossociotion of allottees or the competent outhority, as the case may be.

Section 34-Functions oI the Authori?t: Page 6 of14 9.

HARERA GURUGRAM Complaint No. plaint No.

4030 of 2023 344 of the Act provides to ensure complionce of the obligotions cost upon the promoters, the allottees and the real estate qgents under this Act and the rules ond reguloLions mode thereunder.

So, in view of the provisions of the Act quoted above, the authority has complete .jurisdiction to decide the complaint regarding non- compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainant at a later stage.

Further, the authorify has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Apex Court in Newtech Promoters and Developers Private Limited Vs State of U.p. and Ors. (Supra) ond reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLP (Civil) No.

73005 of 2020 decided on 12,05,2022wherein it has been laid down as under: "86.

From the scheme of the Act of which a detailed reference hqs been mode and taking note of power of odjudication delineated with the regulatory authority and adjudicating ofncer, whatfinally culls out is that although the Act indicates the distinct expressions like 'refund', 'interest', 'penalty' ond 'compensation', a conjoint reading of Sections 18 ond 19 clearly moniksts that when it comes to refund ofthe qmount, qnd interest on the refund omount, or directing payment of interest for deloyed clelivery of possession, or penalqi and interest thereon, it is the regulatory authoriqj which hos the power to examine qnd determine the outcome of o comploint At the same time, when it comes to a question of seeking the relief of adjudging compensation and interest thereon under Sections 12, 14, 18 and 19, the adjudicating olficer exclusively has the power to determine, keeping in view the collective reading of Section 71 read with Section 72 ofthe Act. ofthe Act. if the adjudication under Sections 12, 14, 1B and 19 other than compensation as envisoged, if extended to the adjudicating officer qs prayed that, in our view, may intend to expond the ambit ond scope of the powers and functions of the adjudicating officer under Section 71 and thot would be against the mandate of the Act 2016." 10.

Page 7 of 14 HARERA ffiGUI?UGRAM Complaint No.

4030 of 2023 11.

Hence, in view of the authoritative pronouncement of the Hon,ble Supreme Court in the cases mentioned above, the authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

E.

Findings on the relief sought by the complainant E.

I Direct the respondent to refund the entire amount to the complainant along with interest from the date of respective payments till its complete realization.

12.

The complainant submits that vide receipts dated 05.09.2004 and 09.02.2005, he had paid an amount of Rs.7,50,000/- to the respondent/promoter and the same was confirmed by the respondent in respect of advance against present and future project.

Despite repeated follow up by complainant with the respondent /promoter vide telephonic conversations neither any allotment letter was issued in respect of the aforesaid plot, nor the respondent has finalized anything regarding speci8/ the said project till date.

The complainanr due to the neglectful behaviour of the respondent filed the present complaint pleading for refund along with interest before this authority.

13.

Before coming to the facts of the case, it is to be seen as to the receipt issued by the respondent/promoter fa s within the definition of agreement, as per section Z(eJ of the contract Act, 1g72 and which provides that: "Every promise and every set of promise forming the consideratiun for each other is on ogreement.', 14. ent.', 14.

Further, section 10 of the act defines the conditions under which the agreement made fall with the definition of contract and the same provides as under: Page B oF14 15.

HABEBA GURUGRAM Complaint No.

4030 of2023 "Al[ ogreements ore contracts if they ore mode by the free consent of port[es competent to controct, for a lawful consideration ond with a lawful object and are not herby expressly declared to be void.,, Furthermore, under section 31 of the RERA Act, 2016 any aggrieved person may file a complaint before the Authority or the A.0., however the complaint can be filed only against the promoter, allottee or the real estate agent.

The act/section does not say only allottee or the real estate agent can file a complaint.

In the present case, the complainant is aggrieved by the act of the non-compliance of this part of the contract by the respondent.

Hence, objection of the respondent that complaint is not maintainable stands rejected.

In the present complaing the complainant intends to withdraw from the project and is seeking return of the amount paid by her in respect of subject unit along with interest at the prescribed rate as provided under section 1B(1)(bl of the Act.

Sec.

18(1)(bJ of the Act is reproduced below for ready reference. "Section 78: - Return ol amount and compensation 18(1). lf the promoter foils to complete or is unable to give possession of an qplrtment, plot or building, - (a) in accordance with the terms ofthe agreement for sale or, os the cose moy be, duly completed by the date specifred therein; or (b) due to discontinuance of his bltslress os a developer on account of suspension or revocation of the registration under this Act or for ony other reason, he shall be liable on demqnd to the ollottees, in case the allottee wishes to withdraw from the projecl without prejudice to any other remedy availoble, to re. le, to re.turn the amount received by him in respect of that opartment, plot, building, as the case mqy be, with interest at such rate as may be prescribed in this behalfincluding compensation in the monner as provided under this Act: Provided that where on allottee does not intend to withdrow t'rom the ppiect, he shall be paid, by the promoter, interestfor every month ofdelay, till the handing over ofthe possession, at such rate os may be prescribed.,' (Emphasis supplied) 16.

Page 9 of 14 18. ffiHARERA ffi eunuennv Complaint No.

4030 of 2023 17.

Admissibility of refund along with prescribed rate of interest: The complainant is seeking refund the amount paid by her at the prescribed rate of interest.

However, the allottee is seeking refund of the amount paid by her with interest at prescribed rate as provided under rule 15 ofthe rules.

Rule 15 has been reproduced as under: Rule 75.

Prescribed rate of interest- [proviso to section 72, section 1g ond sub-section (4) and subsection (Z) oI section 191 A) For the purpose of proviso to section 12; section 1g; and sub- sections (4) and (7) of section 19, the ,.interest ot the rate prescribed" shall be the State Bonk of lndia highest marginal cost of lencling rote +2a/6.: Provided that in case the Stote Bonk of lndio morginal cost of tending rate (MCLR) is not in use, it shall be reploced by such benchmark lending rotes which the Stote Bonk of Indio moy fix from time to time for lending to the generol public, The legislature in its wisdom in the subordinate legislation under the provision of rule l.5 of the rules, has determined the prescribed rate of interest.

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in. the marginal cost of lending rate (in short, MCLR) as on date i.e., 26.07.2024 is 9%0.

24 is 9%0.

Accordingly, the prescribed rare of interest will be marginal cost of Iending rate +2o/o i.e., lLo/o.

The definition of term 'interest' as defined under section 2(za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: "(za) "interest" means the rates of interest pqyable by the promoter or the qllottee, as the case may be.

79.

20.

Page 10 of 14 EARERA M GURUGRAM Explonotion. _For the purpose ol this clause_ O the rote of interest chorgeable from the allottee by the promoter, in case of defoutt, shal.t be equat to the rqte "f;;;;r, which the promoter shall be ,li.oble to pay the allottee, in c'ose oldeyault; ti, the interest payobte ty tn" pro.or", ,o-in" ,i"riJ",r*,, * fr". the date the promoter received the omourt or..on)- port m"r"rf titt the dote the at ,*, o "0, o, r ro!,i,i!,!,: ;;: r', : ";i["': i. :;: :: :^:, ; ::;; r: shalt be from the dote the ottou"" a"prtiti i, ioy."rt to tn" promoter till the date t 6 poid;, 21.

The authority after considering ihe facts statea by the parties and the documents placed on record is ofthe view that the complainant is well within her right for seeking refund under section 1B(1J(b) of the Act, 2076.

22.

The instant matter falls in the category where the promoter has failed to allot a plot/unit in its any of the upcoming project as detailed earlier despite receiprs of Rs,7,50,000/- made in the year 2004 and2005.

So, the case falls under section 1g[1] (b) of the Ac t of 2016.

23.

In the instant matter, even after lapse of 16 years from the date of payment till the filling of complaint, no buyer,s agreement has been executed inter_ se parties.

The respondent fails or surrender his claim w.r.t. aim w.r.t. the alleged date, the authority in a rightful manner can proceed in the right of ,udiciar precedents estabrished by higher courts. when the terms and conditions exchanging (agreementl between parties omits to specify the due date of possession the reasonable period should be allowed for possession of the unit or completion of the project.

24.

That the authority is of the considered view that the Act, 2016 ensures the allottee,s right to information about the project and the unit.

That knowledge about the timelines of the delivery of possession forms an Page 11 of 14 EANER4 MGURUGRAM Complaint No.

4030 of 2023 inseparable part of the agreement as the respondent is not communicating the same to the complainant/allottee.

Hence, it is violation of the Act, and shows his unlawful conduct.

25.

The Hon'ble Supreme Court in the case ofFortu ne Infrastructure and Ors. vs.

Trevor D,Lima dnd Ors. (12.05.2015 _ SC); MANU /SC /0253 /2078 obseved that,,a person cdnnot be mode to wait indefrnitely for the possession of the ftats dllotted to them and they dre entitled to seek the refund of the amount paid by them, along with compensotion.

Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration.

In the facts and circumstances of this case, a time period of 3 years would hove been reasonable for completion of the contrdct.

26. [n view of the above,mentioned reasoning, the date of booking is to be treated as provisional allotment letter, ought to be taken as the date for calculating due date of possession, Therefore, the clue date of handing over ofthe possession ofthe unit comes out to be 05.09.2007.

27.

Moreover, the authodty observed by Hon,ble Supreme Court of India in lreo crace Realtech ht, Ltd.

Vs.

Abhishek Khanna & Ors,, civit appeal no.57OS o12079, decided on 11.07.2027 "....

2027 "....

The occupotion certificate is not qvailable even as on dote, which clearly qmounts to deliciency of service.

The allottees cannot be mode to wqit inclefrnitely for possession of the aportments allotted to them, nor can they be bound to toke the oportments in phqse 1 ofthe project.......,, 28.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottee as per agreement for Page 12 of 14 GURUGRAM HARERA sale under section 11[4](aJ.

The promoter has failed to complete or unable to give possession of the unit in accordance with the terms of provisional allotment letter or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottee, as he wishes to withdraw from the proiect, without prejudice to any other remedy available, to return the a with interest at su.n.,,"1,":;;"';:::1":- in respect or the unit 29.

Accordingly, the non-compliance of the mandate contained in section 11(4J(a) read with section 18(1J(bJ of the Act on the part of the respondent is established.

As such, the complainant is entitled to refund of the entire amount paid by her at the prescribed rate of interest i.e., @ 170/o p.a. (the State Bank of India highest marginal cost of lending rate IMCLRJ applicable as on date +20/o) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Developmentl Rules, 2017 from the date of each payment till the actual date of refund of the amount within the timelines provided in rule 16 ofthe Haryana Rules 2017 ibid.

30.

Also vide proceeding dated OS.O7.ZO24, the counsel for the complainant stated that the it had paid amount for the upcoming future proiect vide receipt numbers pCOOlZ37 AND pC003408 in which no area that is to be allotted is mentioned, no area/sector even no tower is mentioned and further stated that they are seeking refund ofthe amount paid by the complainant way back way back in 2004 based on the decision of REM panchkula in case of Vikos Bansal versus parsvnath Developers pvt Ltd. in CR No.2910/2022 and order dated 03.05.2023.

F, Directions ofthe authority Page 13 of 14 ffil]Anenn H eunuennv 31.

Hence, the authority hereby passes this order and issues the following directions under section obrisarions cast upon ,r" ;,1"'::.i::"Til:jTr":,:: ,T the authority under section 34(fJ; i.

The respondent/promoter is directed to refund the amount i.e., Rs.7,50,000/_ received try it from the complainant along with interest at the rate of 11% p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation and DeveiopmentJ Rules,2017 from the date of each payment till the actual date of refund of the deposited amount.

32.

33. _*r v re Erverr LU r"ue respondent to comply with the directions given in this ot'der and failing which legal consequences would follow.

Complaint stands disposed of.

File be consigned to registry. ii.

A period of9 Haryana Dated: 26.07.2024 Page 14 of 14